The idea that a public record reviewed or collected by an Iowa investigator can be considered forever confidential is a relatively new interpretation of the law, and one that makes it impossible for the public to police the police, an author of the state's 40-year-old public records law and a state records advocate say.

Iowa law enforcement had for decades generally made records such as full police reports and 911 transcripts available to the public once an investigation was completed, noted Randy Evans, director of the nonprofit Iowa Freedom of Information Council.

But in recent years, several Iowa law enforcement agencies have maintained that any record that is part of their investigative file — even secondary records produced by other agencies that are not directly associated with a case — should be considered confidential forever.

They cite an exemption in Iowa's public records law that allows materials in law enforcement’s investigative files to be held confidential.

That provision generally has been viewed to reference ongoing investigations, not those that have law enforcement have concluded, Arthur Bonfield, a retired University of Iowa law professor, told the Register in 2016.

"That exemption is intended to only be applicable if it is part of an ongoing investigation," Bonfield said.

The Register first documented the silencing effect the interpretation of the law had on public information in a 2016 investigation.

The Department of Public Safety denied all or parts of 40 out of 59 record requests it received during the first six months of that year, the Register’s investigation found. Of the 40 denials, 28 were based on the investigative file exemption — regardless of whether the case was closed, remained under investigation or had gone cold decades ago.

Bonfield was the principal architect behind the state’s open-meetings law in 1978 and has helped legislators write or modify other public transparency measures.

"It seems to me that, once the investigation is no longer ongoing, that exemption is functionally terminated," Bonfield said.

Evans, of the information council, argues that video footage is generally part of the public records under Iowa law. He noted that practices to release police video in other states have been important to help assess police actions following intense and sometimes deadly encounters with the public.

Randy Evans(Photo: Special to the Register)

"Video technology was sold to city councils and supervisors across the state as a way to provide improved public accountability, but in some situations, when the footage may be unflattering towards law enforcement, that's not happening," Evans said.

Not everyone agrees that the new interpretation runs counter to Iowa law.

Polk County District Court Judge Robert Blink in 2016, for example, ruled that state law allows for continued secrecy.

That ruling came in Timothy Wayne Allen's effort to review records pertaining to four Iowa homicides from the 1970s involving young women. Three of the four cases remain unsolved.

Allen, of Ankeny, argued that routine public records may be released if they are not part of an ongoing investigation, which he said had been a longtime practice under Iowa's open records law.

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Robert Blink(Photo: Register file photo)

But Blink said a comma's placement in the statute's wording means that only electronic mail and telephone billing records of law enforcement agencies must be released following the conclusion of an investigation.

Allen, a former New Orleans homicide detective, said the FBI provided him dozens of documents on the Iowa cases after he filed a similar records request with that agency.

"If the FBI can provide me with responsive documents," Allen said, "why can’t the DCI?" (The Division of Criminal Investigation is part of the public safety department.)

"There’s something clearly, fundamentally wrong in the way they are applying this exemption."